Fifth Circuit reverses in CP case due to lack of evidence showing policy for inventory searches

In United States v. Vernon, No. 12-60105 (5th Cir. 2013), the Fifth Circuit reversed a motion to suppress in a child pornography case over an argument that an inventory search to find the defendant's computer was conducted improperly.

The defendant was arrested at a Mississippi casino by the United States Marshals Service. He refused to consent to a search of his vehicle, and "upon inquiry, the marshals learned that the casino officials wanted the car removed."

I want to stop the story here to explain the significance of that last sentence. They didn't have a warrant, and the defendant wouldn't consent to the search, so the officers decided that they would just try to bypass the Fourth Amendment, because well, they can. One of the exceptions to the Fourth Amendment is for an inventory search. If a vehicle is, for example, obstructing a roadway, law enforcement may use their "community caretaking" powers to seize the car and take an inventory of its contents. It cannot, however, be done as a pretext for a search - such as when law enforcement just want to search a vehicle so they tow it.

In their inquiry to the casino, I'm assuming the conversation went something like this:

Marshals - "We're arresting someone at your casino for child pornography, and they have a car in your parking lot. You might want to thinking about having it removed." 

Casino - "Okay. Yes, we should probably do that."

Marshals - "What's that? You're asking us to tow the vehicle?" 

Casino - "Oh, sure. That would be great." 

The point is, the casino never would have known the driver of the car was no longer there - they're open 24 hours a day, and the parking lot is always half full. It's fairly obvious that the "inquiry" and search were done only because they wanted to look for evidence. Regardless, the Fifth Circuit held otherwise on this point.

So the car was towed by the local sheriff's department, and the sheriff's department performed an inventory search, resulting in the find of a computer. A search warrant was obtained, and child pornography was found.

Inventory searches require the search to be conducted using the department's standard policy as the "inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence." At trial, the marshal testified about policy of the Marshals Service and admitted that their policy was not followed. No evidence was presented to show what the policy is for the local sheriff's department. As such, there is no way for the Fifth Circuit to know whether the inventory search complied and was, therefore, constitutional.

Thus, the motion to suppress was reversed, and the conviction was vacated and remanded.